Gallegos v. Tow, A-1-CA-38519

CitationA-1-CA-38519
Case DateNovember 21, 2022
CourtCourt of Appeals of New Mexico

STEPHEN N. GALLEGOS; IGNACIO V. GALLEGOS and JOSE FRANCISCO GALLEGOS, Trustees of the A. MOISES AND AURELIA GALLEGOS FAMILY TRUST, dated December 11, 1999; PHYLLIS HAYES; DOUGLAS RIDLEY; DAVID RIDLEY and MELINDA RIDLEY, Plaintiffs-Appellees,
v.

ALLAN TOW and SALLIE BUDAGHER, Defendants-Appellants,

and BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellee, and GREGORY STEINER and CLARA BUSTAMANTE, Defendants.

No. A-1-CA-38519

Court of Appeals of New Mexico

November 21, 2022


Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY JAMES LAWRENCE SANCHEZ, DISTRICT JUDGE

Atler Law Firm, P.C. Timothy J. Atler Jazmine J. Johnston Albuquerque, NM Anthony J. Williams Los Lunas, NM for Plaintiffs-Appellees

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Allan Tow Sallie Budagher Willard, NM Pro Se Appellants

Modrall, Sperling, Roehl, Harris & Sisk, P.A. Stan N. Harris Earl E. DeBrine, Jr. Albuquerque, NM for Defendant-Appellee BNSF Railway Company

MEMORANDUM OPINION

J. MILES HANISEE, CHIEF JUDGE

{¶1} Defendants Allan Tow and Sallie Budagher, pro se, appeal the district court's final judgment, including a finding of an easement on their land and associated attorney fees for proceedings below. Defendants raise twelve issues that we briefly address in turn. We affirm the district court on each issue.

DISCUSSION

{¶2} "[W]e regard pleadings from pro se litigants with a tolerant eye, but a pro se litigant is not entitled to special privileges because of his pro se status." Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84. "[T]he appellate court will review the arguments of self-represented litigants to the best of its ability, but

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cannot respond to unintelligible arguments." Ross v. Negron-Ross, 2017-NMCA-061, ¶ 14, 400 P.3d 305. We review Defendants' arguments briefly and to the best of our ability to ensure each proposed error receives review. However, we also repeat our previous advice: "we encourage litigants to consider carefully whether the number of issues they intend to appeal will negatively impact the efficacy with which each of those issues can be presented." Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, ¶ 55, 144 N.M. 636, 190 P.3d 1131.

Issue One

{¶3} Defendants' first issue asserts that the district court's judgment was not supported by substantial evidence. "[W]e review the sufficiency of the evidence to support the verdict by examining whether the verdict is supported by such relevant evidence that a reasonable mind would find adequate to support a conclusion." Morga v. Fedex Ground Package Sys., Inc., 2018-NMCA-039, ¶ 11, 420 P.3d 586 (internal quotation marks and citation omitted). "We review all evidence in the light most favorable to the verdict and resolve all conflicts in the light most favorable to the prevailing party." See id. (internal quotation marks and citation omitted). "[F]or the purposes of our sufficiency of the evidence review on appeal, under Rule 11-301 [NMRA] a presumption once raised in both jury and non-jury trials continues to have evidentiary force, regardless of the contradictory evidence presented by the

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party against whom it is employed." Chapman v. Varela, 2009-NMSC-041, ¶ 12, 146 N.M. 680, 213 P.3d 1109.

{¶4} Our Legislature has provided a conclusive presumption of an irrigation ditch easement when a party demonstrates five continuous years of irrigation through the ditch. See NMSA 1978, § 73-2-5(A) (2005). In its findings of fact and conclusions of law, the district court found an easement exists through Defendants' land to serve and benefit Plaintiffs Gallegos's and Ridley's farms. The district court also found that the Gallegos farm was irrigated through the ditch from 1950 to the beginning of litigation in 2015. Defendant Tow's trial testimony conceded that the Gallegos farm has been irrigated using the ditch from 1999 to the beginning of litigation. The district court also found that the Ridley farm's orchards were irrigated for six to twelve years, two decades before the beginning of litigation, and that Plaintiff Ridley never intended to abandon the easement. Resolving disputes of fact in favor of all Plaintiffs, a reasonable mind could find an easement under the presumption granted by Section 73-2-5(A), and we therefore conclude the district court's judgment was supported by substantial evidence.

Issue Two

{¶5} Defendants contest the district court's grant of attorney fees, but do so by arguing that the district court said it would not rely on facts about a diversion canister on the ditch in question. Defendants offer no legal citation or explanation to support

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how their claim meaningfully attacks the grant of attorney fees. From our review of the record, it does not appear that the district court ever promised not to mention the canister. Instead, the court-while explaining to Defendants why they could not introduce evidence that they mistakenly agreed to remove the canister-indicated that it did not intend to include findings as to whether Defendants' removal of the canister was a mistake that increased Defendants' damages. The finding of the district court relevant to attorney fees is that Defendant Tow violated the court order of March 18, 2016, by, among other violations, locking the canister. Defendant Tow is not entitled to relief from a grant of attorney fees compensating Plaintiffs for the litigation necessary to enforce a court order. See El Paso Prod. Co. v. PWG P'ship, 1993-NMSC-075, ¶ 31, 116 N.M. 558, 866...

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